Obenshain Requests Recount in Va. AG Race

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Leesburg, VA - The two major party candidates for Virginia Attorney General - Democrat Mark Herring, L, and Republican Mark Obenshain - participate in a campaign debate hosted by the Loudoun County Chamber of Commerce on October 2, 2013. (Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

Republican state Sen. Mark Obenshain asked for a recount Wednesday in his quest to overcome a 165-vote loss to Democratic state Sen. Mark Herring in the neck-and-neck race to become Virginia's next attorney general.

The closest statewide election in modern Virginia history is also expected to entail the state's most extensive recount. Attorneys for Obenshain promised a thorough but polite rivalry with Herring's attorneys to ensure that every ballot -- of the more than 2.2 million cast Nov. 5 -- is properly accounted for.

"Here in Virginia, we try to be as civil as possible in our litigation and that carries over [in] the recount process,'' said Stephen C. Piepgrass, a member of Obenshain's legal team.

Virginia does not have an automatic recount, but a candidate can seek one at taxpayer expense if the victor's margin is less than one-half of 1 percent. The State Board of Elections on Monday certified Herring's 165-vote win, which represents a 0.007 percent edge over Obenshain.

Wednesday morning, Obenshain's attorneys petitioned for a recount with Richmond Circuit Court, whose chief judge will convene a recount court. The chief justice of the Supreme Court of Virginia will appoint two other judges to the panel.

The recount court, which is expected to conduct a hearing within seven days, will ultimately declare the winner.

The recount will likely occur in mid-December, involve every locality in the state and include an array of ballots cast - touch-screen, electronic recording machines and optical scanners. No locality uses punch-card ballots, whose hanging chads became part of the national political vocabulary during the 2000 presidential recount in Florida.

Any ballots that are disputed will be sealed and sent to the recount court in Richmond.

"They'll resolve any disputes that arise,'' Piepgrass said during a conference call with reporters.

Piergrass and another Obenshain attorney, Ashley L. Taylor Jr., were hesitant to point to any particular locality that might be the focus of their challenges.

The Fairfax County Electoral Board has defended its provisional ballot review, saying it followed "the letter of the law.''

Taylor did note that more than 700,000 optical scan ballots would be scrutinized during this recount for the first time.

Those ballots were not scanned during what was then the closest statewide race -- the 2005 contest for attorney general between Creigh Deeds and Bob McDonnell, the current governor. McDonnell added to his margin during the recount.

Deeds, a state senator, later successfully pushed through legislation to ensure optical scan ballots were included in future recounts.

So-called under-votes will also come into play. Those are ballots in which a voter did not vote for a full slate of candidates. Those ballots will be examined to determine whether that was intentional or an error in casting a vote.

Absentee and provisional ballots will be counted by hand.

Obenshain and Herring are expected to have observers throughout the state to monitor the recount.

Taylor said he expects the recount to "be conducted with integrity, civility and efficiency, and that is our goal throughout the process.'' He said the Obenshain team's goal was not to seek out ballots that favor its candidate.

"Again, we're not cherry-picking votes,'' Taylor said.

Each man is seeking to succeed Republican Attorney General Ken Cuccinelli, who failed in his bid for governor.

Obenshain represents the Harrisonburg area in the Virginia Senate, while Herring represents parts of Loudoun and Fairfax counties.